Matthew T. Mangino: A new sentencing for Buck: Will it make any difference?

Friday

Mar 3, 2017 at 10:43 AMMar 3, 2017 at 10:43 AM

Last week, the U.S. Supreme Court ruled that Texas death row inmate Duane Buck may be entitled to a new sentencing hearing because an expert witness testified at his trial that Buck was more likely to be dangerous in the future because he is black.

Last week, the U.S. Supreme Court ruled that Texas death row inmate Duane Buck may be entitled to a new sentencing hearing because an expert witness testified at his trial that Buck was more likely to be dangerous in the future because he is black.

The victory for Buck, and all those who believe in the edict that justice is blind, may not — if history is a guide — provide the ultimate relief that Buck is looking for — a new sentence of life in prison.

During the sentencing phase of Buck’s trial in 1997, his lawyer presented a report from psychologist, Dr. Walter Quijano, who said race was one of the factors associated with future dangerousness.

According to the New York Times, Dr. Quijano testified at trial, “It’s a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system,”

This is not the only time that Dr. Quijano made the connection between race and future dangerousness. In Texas, to obtain a death sentence, the State has to prove beyond a reasonable doubt that there is a probability the defendant would commit violent criminal acts in the future.

In 2000, while Buck's case was on appeal in state court, the U.S. Supreme Court reviewed the case of Victor Saldano. The same psychologist testified during Saldano's sentencing that Saldano’s race increased the likelihood of future dangerousness.

John Cornyn, Texas’ attorney general at the time and now a United States senator, began a review of death penalty cases involving Dr. Quijano’s testimony. He found six cases, including Buck’s that had tainted testimony.

''The people of Texas want and deserve a system that affords the same fairness to everyone,'' Cornyn said at the time, according to the New York Times. The state later consented to new sentencing proceedings in the five other cases; John Alba, Carl Henry Blue, Eugene Alvin Broxton, Gustavo Julian Garcia and Michael Dean Gonzales.

Buck was not granted a new sentencing. A new Texas Attorney General was elected and the State contested that Buck was entitled to a new sentencing hearing. The lower courts refused to reverse his death sentence.

Last week’s decision may finally provide Buck with a new sentencing hearing. Chief Justice John Roberts wrote that Dr. Quijano’s testimony was laced with “a particularly noxious strain of racial prejudice.”

The expert testimony “said, in effect, that the color of Buck’s skin made him more deserving of execution.” Roberts went on to write that, “Our law punishes people for what they do, not who they are ... Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.”

In a dissent, Justice Clarence Thomas wrote that the Buck decision “has few ramifications, if any beyond the highly unusual facts presented here (in Buck’s case).”

Unfortunately, that is not entirely correct. The six other men identified as being subject to the racially charged — and clearly flawed — testimony of Dr. Quijano have little to show for having been originally sentenced to death, in part, because of their race.

Three of the six have been executed — John Alba in 2010; Carl Henry Blue in 2013 and Gustavo Julian Garcia in 2016. The other three — Victor Saldano, Eugene Alvin Broxton, Michael Dean Gonzalez — are back on death row awaiting execution.

The same fate may await Duane Buck. The Supreme Court did not change Buck’s sentence to life in prison. The Court merely provided a mechanism for Buck to have a new sentencing hearing without the flawed testimony of Dr. Quijano.

In much the same way that the six prior inmates were resentenced to death, Buck may ultimately return to death row and, at some point, the death chamber in Huntsville, Texas.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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